Volume 37 Issue 3 Summer Summer 2007 The Constitutionality of Faith-Based Prison Programs: A Real World Analysis Based in New Mexico Maya Anderson Recommended Citation Maya Anderson, The Constitutionality of Faith-Based Prison Programs: A Real World Analysis Based in New Mexico, 37 N.M. L. Rev. 487 (2007). Available at: https://digitalrepository.unm.edu/nmlr/vol37/iss3/3 This Notes and Comments is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr THE CONSTITUTIONALITY OF FAITH-BASED PRISON PROGRAMS: A REAL WORLD ANALYSIS BASED IN NEW MEXICO MAYA ANDERSON* I. INTRODUCTION The recidivism rate in this country is staggering. In 2002, the Department of Justice released a recidivism study indicating that, of the inmates tracked, 67.5 percent were re-arrested, 46.9 percent were re-convicted, and 25.4 percent were re- sentenced within three years of their release.' The desire to reduce these figures has led the federal and state governments to look to new and alternative ways to prevent inmates from making return trips to prison.2 Of the solutions proffered, one rests on the principle that prisoners who practice religion are less likely to become repeat offenders: faith-based prison programming.3 Faith-based prison programming incorporates religion into an inmate's rehabilitation plans and attempts to instill her with the morals needed to avoid returning to jail post-release. 4 The faith-based units generally involve a separate living facility for participants and separate rehabilitation-oriented programs. Such units, however, have brought about a flurry of challenges claiming that allowing government facilities to fund religious programs violates the Establishment Clause.' Some of these lawsuits were brought by taxpayers who relied on the U.S. Supreme Court's decision in Flast v. Cohen,6 which allowed citizens to bring an Establishment Clause claim based solely on their status as taxpayers.7 However, on June 25, 2007, the U.S. Supreme Court handed down a ruling that may substantially diminish the number of Establishment Clause cases brought before the courts. In Hein v. Freedomfrom Religion Foundation,Inc.,' a plurality of the Court determined that taxpayer standing would no longer be sufficient to * Class of 2008, University of New Mexico School of Law. I would like to thank Professor Ruth Kovnat, Margot Sigal, Kate Girard, and Nikko Harada for their guidance. I would also like to thank my family and Josh for their continued support. This work is dedicated to the memory of my wonderful grandmother, Arline Montgomery. 1. PATRICK A. LANGAN & DAVID J. LEVIN, U.S. DEP'T OF JUSTICE, RECIDMSM OF PRISONERS RELEASED IN 1994, at 1 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr94.pdf. The study was published in 2002 and followed 272,111 prisoners from fifteen states who were released in 1994. Id. About two-thirds of the recidivist crimes occurred within the first year of the three-year period of the study. Id. 2. One scholar has suggested that education is the answer. Bernard LoPinto, How Schools "Down Back" Help Inmates and Society, http://adulted.about.com/cs/prisoneducation/a/prison -ed.htm (last visited June 24, 2007). Another, albeit unconventional, approach to assist in the reduction of recidivism was implemented by the sheriff of Mason County, Texas. Dan Glaister, Pink Prison Makes Texan Inmates Blush, GUARDIAN, Oct. 11, 2006, available at http://www.guardian.co.uklusalstory/o,,1892555,00.html#article_continue. There, the inmates were forced to wear all pink clothes and sleep in pink sheets and the walls and bars of the jail were painted pink. Id. 3. See, e.g., Colin J. Baier & Bradley R.E. Wright, "If You Love Me, Keep My Commandments ": A Meta- Analysis of the Effect of Religion on Crime, 38 J. RES. CRIME & DELINQ. 3, 3 (2001). 4. See id. at 16-17. 5. See, e.g., Claire Hughes, Potentialfor Widespread Fallout in Ruling Against Iowa Faith-BasedPrison Program, ROUNDTABLE ON RELIGION & SOC. WELFARE POL'Y, June 6, 2006, available at http://www.socialpolicyandreligion.orglnewslarticle-print.cfm?id=4384; Freedom from Religion Foundation, FFRF Sues Federal Bureau of Prisons over Faith-Based Prison Programs (May 5, 2006), http://ffrf.org/news/2006/FedPrisonsued.php. 6. 392 U.S. 83 (1968). 7. See infra Part V.C. 8. 127 S. Ct. 2553 (2007). NEW MEXICO LAW REVIEW (Vol. 37 bring Establishment Clause claims except in certain, limited situations.9 The decision limits the reach of the Flast exception to actions brought about by a specific act of Congress."0 After this ruling was handed down, a case that had been pending in New Mexico regarding the constitutionality of a faith-based unit at the New Mexico Women's Correctional Facility (NMWCF) in Grants, New Mexico was dismissed due to the plaintiffs' lack of standing." In that case, a separation of church and state watchdog group, the Freedom From Religion Foundation, Inc. (FFRF), joined with New Mexico taxpayers to challenge the faith-based prison unit located at the Grants facility.12 In their complaint, the plaintiffs named the following persons and entities as defendants: New Mexico Governor Bill Richardson, New Mexico Corrections Department Secretary Joe Williams, Coordinator of Faith-Based Programs for the New Mexico Corrections Department Homer Gonzales, Warden of the NMWCF Bill Snodgrass, and Corrections Corporation of America, Inc. 13 The plaintiffs claimed that the faith-based unit in Grants violated the Establishment Clause because the State 1of4 New Mexico allowed government funds to be used to promote a religious cause. The Grants facility, which is operated on behalf of the State of New Mexico by Corrections Corporation of America, Inc. (CCA), 15 receives its funding from the permanent land fund and from the New Mexico General Fund, which includes taxpayer monies.' 6 In 2001, CCA opened a separate living unit for inmates participating in a six-month faith-based program called the Life Principles Community/Crossings Program. 7 This unit, dubbed the "God Pod," provides participant inmates with a quieter living environment and requires them to participate in a total of 732 hours of programming over the six-month term. 8 Part II of this Comment presents the new Hein ruling; Part 1I discusses the U.S. Supreme Court's jurisprudence regarding the Establishment Clause.' 9 The Court has formulated several tests and standards by which lower courts can judge the constitutionality of state or federal funding in light of the Establishment Clause's prohibitions. Part IV discusses how lower courts have applied the U.S. Supreme Court's formulations to prison programs faced with Establishment Clause challenges.2° Part V outlines the facts of the recently dismissed New Mexico case,2' and Part VI specifically examines the constitutionality of faith-based programming 9. Id. 10. Id. at 2568. 11. Freedom from Religion Found., Inc. v. Richardson, No. CIV-05-1168-RLP/KBM (D.N.M. Nov. 7, 2005). 12. See infra Part V.A.3. 13. Complaint at 3-4, Freedomfrom Religion Found., Inc., No. CIV-05-1168-RLP/KBM (D.N.M. Nov. 7, 2005). 14. Id. at 11; see infra Part V.A.3. 15. See infra Part V.A.1. 16. Answer to Civil Rights Complaint at 8, Freedom from Religion Found., Inc., No. CIV-05-1168- RLP/KBM (D.N.M. Jan. 13, 2006). 17. See infra Part V.A.2. 18. See infra Part V.A.2. 19. See infra Part III. 20. See infra Part IV. 21. See infra Part V. Summer 2007] FAITH-BASED PRISON PROGRAMS Facility in light at correctional facilities like the New22 Mexico Women's Correctional of current federal jurisprudence. This Comment argues that faith-based programming, such as that at the Grants facility, violates the Establishment Clause. This Comment focuses on the fact that the outcome of a constitutional challenge against such programs will depend upon which of the U.S. Supreme Court's proffered tests the trial court uses in its analysis. Although a ruling for either party could be supported by the available jurisprudence, only a ruling against the constitutionality of faith-based programs like the one at the NMWCF will help to ensure that private prisons are held to constitutional standards in maintaining the separation of church and state. A judgment to the contrary would set a dangerous precedent that would allow private corporations that run prison facilities under contracts with the state to commit constitutional violations without any possible redress for those adversely affected. II. HEIN: THE CURRENT STATUS OF TAXPAYER STANDING IN ESTABLISHMENT CLAUSE CASES The concept of standing is related to the Article m restriction of judicial power to hear only "cases" and "controversies. 23 Standing addresses the question of "whether the litigant is entitled to have the court decide the merits of the dispute or of the particular issues."24 The U.S. Supreme Court said that the "core component" of standing is that the plaintiff alleges "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested 25 relief." Historically, an individual's status as a federal taxpayer was insufficient to confer the standing necessary to bring a claim based on an act of the federal government because there was no "personal injury," only a general injury.26 In Flast v. Cohen, the Supreme Court created an exception to this rule and held that "a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power., 27 The Court in Flast applied this new exception to the Establishment Clause of the First Amendment because it "specifically limit[s] the taxing and spending power conferred by Art.